Blog Traffic

April 9, 2005

Death penalty items around the blogsphere

A few items concerning the death penalty have caught my eye around the blogsphere:

The Connecticut Law Blog is covering, as their name would suggest, Connecticut death penalty developments with posts here and here and here reporting on the hearing concerning death row volunteer Michael Ross's competency and a post here on a proposed amendment to the state's death penalty law.

Dan Markel at PrawfsBlawg discusses here his forthcoming article on the death penalty and also promises future commentary on the recent death penalty article by Professors Sunstein and Vermeule suggesting capital punishment might be morally required, which I noted here and critiqued here.

Retroactivity contrasts and contentions

As noted by Appellate Law & Practice here, the Second Circuit yesterday in Guzman v. United States, No. 03-2446 (2d Cir. Apr. 8, 2005) (available here), expressly held that Booker "does not apply to cases on collateral review where the defendant's conviction was final as of January 12, 2005, the date that Booker issued." This ruling makes a total of five circuits, as detailed here, that have spoken to this issue — the 2d, 6th, 7th, 10th and 11th — and all five have declared Booker is not applicable to cases which became final before the decision.

But the story of retroactivity is much more dynamic than this pattern of federal circuit decisions might suggest. As spotlighted here, this past week a Colorado appellate court in Johnson decided that "[b]ecause Blakely explains and clarifies Apprendi, we apply it retroactively to defendant's sentence, which was imposed after Apprendi was announced." That is, the Colorado court has concluded that Blakely is not a new rule, but rather an application of Apprendi that should be applicable to all cases not yet final in June 2000 when Apprendi was decided.

Moreover, despite the fact that no other courts, to my knowledge, have yet expressly declared Blakely or Booker retroactive, there are a number of interesting arguments being developed to support retroactivity claims. As noted previously here, a recent Harvard Law Review note, Rethinking Retroactivity, 118 Harvard Law Review 1642 (2005), argues that the Supreme Court's decision in Schriro, which most lower courts cite to find againstretroactivity, actually supports the retroactive application of Apprendi's reasonable doubt holding. A lawyer from New Jersey recently sent me a letter brief, which can be downloaded below, that builds on this article to argue that "proper application of the retroactivity test of Teague v. Lane requires retroactivity of Apprendi."

Taking a different tack, another lawyer operating in federal court has sent me a motion which argues more broadly that Teague v. Lane is simply not applicable to the question of Booker's retroactive application. That motion, which can also be downloaded below, spotlights that "the U.S. Supreme Court has never held that Teague v. Lane is applicable, either in its entirety or in part, to federal inmate's petitions under § 2255."

I have posted a lot previously about these and related retroactivity issues, and below I have linked some of my major pre-Booker posts discussing retroactivity. Also, all my more recent posts on this topic are collected at this link.

Summarizing all the Booker action

I was pleased to discover on the US Sentencing Commission's Booker page that the USSC has prepared and posted this extended memo on "Selected Post-Booker Decisions." Running 55 pages, this memo provides an in-depth primer on all the leading district and circuit rulings, but only through March 16, 2005.

Booker and Blakely stories shifting to warp speed

After a remarkable March — with major sentencing developments coming from state and federal courts and legislatures (summarized in posts linked here and here and here and here and here) — I was hoping the sentencing world might slow down in April. But, as detailed in my Sunday best? post last weekend, April got off to a flying start. And this past week it seems Booker and Blakely stories have shifted into hyperdrive. Here are just some highlights from this week:

Notable items about blogs

To express thanks for the link, let me note this long article from the Chicago Tribune discussing The Becker-Posner Blog. At the end of the article, this blog is placed on a short list of "Other popular and influential academic and/or legal blogs." I am flattered, but the absence of How Appealing or SCOTUSblog on the list is damning to the article's authoritativeness (or perhaps reflects a geographical bias: no east-coast blog made the list).

10th Circuit speaks (and speaks and speaks) on plain error!

As if the circuits did not give us enough Booker reading this weekend, I have just discovered that on Friday the 10th Circuit produced a book on Booker plain error through its (82-page!) en banc ruling in US v. Gonzalez-Huerta, No. 04-2045 (10th Cir. Apr. 8, 2005) (available here). And just when we all thought all the circuits had settled into the three-way circuit split on plain error, especially with the DC Circuit in Coles jumping on the Crosby/Paladino band-wagon (detailed here), the 10th Circuit spices up the story with Gonzalez-Huerta by affirming the defendant's guideline sentence due to the fourth prong, rather than the third prong, of the plain-error test.

It is impossible to neatly summarize Gonzalez-Huerta, in part because there are a total of six opinions: one for the court, three concurrences, one partial concurrence/partial dissent, and one dissent. The opinion for the court in Gonzalez-Huerta does embrace the "defendant must prove prejudice" for the third prong of the plain-error standard. But, as noted above, the court's affirmance in Gonzalez-Huerta ultimately rests on the fourth prong of plain error because it concludes, based on the facts of the case before it, "that the District Court's mandatory application of the Guidelines was not 'particularly egregious' or a 'miscarriage of justice.'"

Because of all the opinions and their extensive analysis, Gonzalez-Huerta provides the most complete discussion of plain-error issues to date. However, because of all the opinions and their extensive analysis, Gonzalez-Huerta is not a complete model of clarity. Consider, for example, the first paragraph of Judge Ebel's concurring opinion:

I agree with the majority's decision to affirm Gonzalez-Huerta's sentence under the fourth prong of the Olano plain-error test and therefore I join Sections I, IIA, IIB, IID, and III of the majority opinion. However, I disagree with the majority's analysis and conclusion reached under the third prong of the Olano plain-error analysis (Maj. op. sections IIC), and accordingly I do not join those sections of the majority opinion. Regarding the prejudice-prong analysis, I believe that Judge Briscoe got it right, and accordingly, I join Section IV of her concurrence. Regarding the fourth prong of the Olano plain-error analysis, as noted above, I join Section IIE of the majority opinion. I join Part II of Judge Hartz's concurrence. Finally, I add this concurring opinion to offer some additional analysis applicable to the fourth-prong analysis.

April 8, 2005

Colorado court says Blakely retroactive to Apprendi

Providing perhaps the biggest development in a big week, I just got news that yesterday the Colorado Court of Appeals in People v. Johnson, No. 03CA2339 (col. App. Apr. 7, 2005) (available here) concluded "that Blakely applies retroactively to the date that Apprendi established its new rule." Here's the court's analysis:

In People v. Bradbury, 68 P.3d 494 (Colo. App. 2002), a division of this court concluded that Apprendi did not apply retroactively because it "established a new rule" and "imposed a new obligation" upon trial courts. People v. Bradbury, supra, 68 P.3d at 497.

We adopt the reasoning in Bradbury and conclude that because Apprendi established a new rule which had the effect of overriding a widespread practice of allowing judges to decide facts used to aggravate sentences, Blakely's interpretation of that rule must necessarily apply retroactively to the date the rule was established. Writing for the majority in Blakely, Justice Scalia clearly limited the holding back to the date of Apprendi when he wrote: "the relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Blakely, supra, 124 S.Ct. at 2537.

Because Blakely explains and clarifies Apprendi, we apply it retroactively to defendant's sentence, which was imposed after Apprendi was announced. We note at least two federal cases which have held that Blakely does not apply retroactively to collateral attacks against convictions. See, e.g., In re Dean, 375 F.3d 1287, 1290 (11th Cir. 2004); United States v. Stoltz, 325 F. Supp. 2d 982, 987 (D. Minn. 2004). In concluding that retroactive application should be made here, we nevertheless do not apply Blakely to collateral attacks against convictions unless those convictions postdated Apprendi. People v. Dunlap (Colo. App. No. 01CA1082, Sept. 9, 2004).

Booker circuit action does not slow down on Friday

I am just back from an afternoon speaking about sentencing to a group from the National Bar Association in Cincinnati (home of an undefeated baseball team, I must note). And a quick stop at the always helpful Appellate Law & Practice reveals that the Booker circuit action has not slowed down. I see posts from AL&P about notable cases concerning Booker or other sentencing issues from the First Circuit here, from the Second Circuit here, from the Sixth Circuit here and here. And from another source I have seen this order entered by the Fourth Circuit denying the Government's Petitions for Rehearing En Banc in the Hughes (plain error) case.

I hope this weekend to find some time to comment on these and other Booker developments, although I may be distracted by another sporting event if the sun decides to finally come out in Augusta. But the brewing debate over white-collar cases, to be found at this link, will definitely get a few words from me before long.

DC Circuit speaks on plain error

The DC Circuit has been the quietest of the bunch post-Booker, but today the circuit jumped into the plain-error fray with its opinion in US v. Coles, No. 03-3113 (DC Cir. Apr. 8, 2005) (available here). Remarkably, the Coles decision deepens the three-way circuit split on plain error, as the DC Circuit has become the third circuit to adopt the "middle" position of "let's ask when in doubt" plain-error standard. Here is the first paragraph of Coles:

This case raises an important issue left open by the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005), concerning the application of the plain-error doctrine to appeals from sentences rendered under the Federal Sentencing Guidelines before the Supreme Court ruled that they are advisory rather than mandatory. In addressing this issue, we align ourselves generally with the decisions of the Second Circuit in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), and the Seventh Circuit in United States v. Paladino, No. 03- 2296, 2005 WL 435430 (7th Cir. Feb. 25, 2005), reh'g en banc denied, id. (7th Cir. Feb. 25, 2005), and most particularly with the approach adopted by the Seventh Circuit. Because the record is insufficient for us to determine with confidence whether the defendant suffered prejudice from the Booker error in this case, we hereby remand the record to the District Court so that it may determine whether it would have imposed a different sentence, materially more favorable to the defendant, if sentencing had taken place under the post-Booker sentencing regime.

Interesting Blakely development in Michigan

Soon after Blakely was decided last summer, the Michigan Supreme Court in People v Claypool, 470 Mich. 715 (2004) (discussed here) dropped a footnote asserting that Michigan's guideline scheme operates in a manner that avoids Blakely problems. That assertion came without full briefing of the issue and, as detailed in this post, is not perfectly obvious to everyone.

Today I received news that last week the Michigan Supreme Court entered the following order in the case of People v Drohan:

On order of the Court, the application for leave to appeal the October 12, 2004 judgment of the Court of Appeals is considered, and it is GRANTED, limited to the issue whether Blakely v Washington, 124 S Ct 2531; 159 L Ed 2d 403 (2004), and United States v Booker, 125 S Ct 738; 160 L Ed 2d 621 (2005), apply to Michigan's sentencing scheme. The Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the question presented in this case may move the Court for permission to file briefs amicus curiae.

We further note defendant's allegation in a supplemental brief that Blakely v. Washington, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), applies to the sentencing in this case. We disagree with this contention. Indeed, the Michigan Supreme Court noted in People v. Claypool, 470 Mich. 715, 730 n. 14, 684 N.W.2d 278 (2004), that Blakely does not affect Michigan's sentencing system. We disagree with defendant that this statement from Claypool is not binding on us. Nevertheless, given the large number of recent criminal appeals in which this issue has been raised, we request that the Supreme Court issue its opinion concerning whether footnote fourteen in Claypool constitutes binding precedent.

Arguments over Blakely in California

As noted here yesterday, the California Supreme Court yesterday finally heard arguments on a state Blakely case, and this morning the Sacramento Bee is reporting in this article that the tenor of the arguments suggested that Court might look to avoid Blakely's application in California:

The nation's turmoil over sentencing practices may not be extended to California, justices of the state Supreme Court indicated Thursday, after wrestling with the implications of a wave of rulings by the U.S. Supreme Court.

I am very interested to hear more analysis of these arguments; perhaps readers who watched the arguments might use the comments to share their impressions.

A pattern of white-collar leniency?

Yesterday I questioned in this post whether former Providence Mayor Vincent "Buddy" Cianci and his associates may have received special consideration from the 1st Circuit in its remand decision. And a piece in the New Haven Advocate entitled Incomplete Sentences (available here), which discusses recent sentencings by Connecticut District Judge Peter Dorsey, has me thinking more broadly about whether we might expect white-collar offenders to be the biggest beneficiaries of Booker and the new discretion it affords federal sentencing judges.

The New Haven Advocate piece discusses Judge Dorsey's sentencing of former Connecticut Governor John Rowland and also the below guideline sentence he gave to Sandra Martin, who admitted to stealing nearly $1 million from Fairfield County banks by moving checks among multiple accounts.

The post-Booker world in Delaware

The Delaware News Journal has this article this morning which reports on the application of Booker in the federal courts in Delaware. The article effectively provides a view of the post-Booker world in one district, and it reports, based on statistics apparently provided by the local US Attorney's Office, that sentences below the guideline range have increased significantly in the wake of Booker:

Of the 40 sentences handed down in U.S. District Court in Wilmington since the high court decided the case of United States v. Booker, Delaware federal judges have deviated from the guidelines in 11 instances, according to the U.S. Attorney's Office.

In one of the 11 cases, the court applied the guidelines and ruled they allowed a departure from the normal sentencing range, U.S. Attorney Colm F. Connolly said. "In the other 10 cases, the court declined to follow or apply the guidelines," he said.

Altogether, Delaware judges have departed from the guidelines in 27.5 percent of their sentences since the Booker ruling. In fiscal 2002, Delaware judges departed in only about 10 percent of sentences, according to federal statistics.

In addition to being intrigued by these district-specific statistics, I am also intrigued by the dissemination of this information by the local U.S. Attorney's Office.

April 7, 2005

Helpful commentary and analysis on recent circuit action

As is evidenced by all the posts with numbers in the title recently, the circuits have been a bit Booker manic this week (consider just yesterday's round-up here). I am trying to sift the Booker wheat from the chaff (for fear of getting e-mail complaints), but my eye likely sees too much wheat in all things Booker. Helpfully, the folks running the federal defender websites (assembled here) do a better job than me in spotlighting the really significant cases in the circuits. So:

The Second Circuit Blog has a post on Doehere, the case in which the Second Circuit declared a sentence unreasonable under Booker (discussed here).

The Sixth Circuit Blog has a post on Webb here, the case in which the Sixth Circuit expounded at length about reasonableness under Booker in the course of affirming a sentence (discussed here).

The Seventh Circuit Blog has a post on Newsom here, the case in which the Seventh Circuit had some interesting dicta comments (discussed here).

The Defense Newsletter blog (which covers the 11th Circuit) has a post on Orundo-Mireleshere, the case in which the Eleventh Circuitaffirmed a sentence over objections to enhancements based on criminal history (discussed here).

Did Cianci receive special consideration from the 1st Circuit?

As first noted here last night, the First Circuit has remanded for resentencing under Booker the sentence of former Providence Mayor Vincent "Buddy" Cianci and his associates (see news account here). I have been sent the full ruling (cut and pasted from the docket sheet):

4/5/05 ORDER entered by Judge Jeffrey R. Howard, Senior Judge Levin H. Campbell, and Senior Judge Norman H. Stahl. After consideration of the supplemental briefs filed by the parties, we vacate the sentences of the three defendants, Vincent A. Cianci, Jr., Frank E. Corrente, and Richard E. Autiello, and remand the action to the district court for resentencing pursuant to United States v. Booker, 125 S. Ct. 738 (2005). We intimate no view as to what sentences should be imposed on remand. So ordered.

Apparently there is no opinion forthcoming. This outcome seems most peculiar since it seems Cianci and his associated did not raise Apprendi/Blakely issues at their (pre-Blakely) sentencings, and thus would need to establish plain error to get a remand. And, recall, that the First Circuit applies the tough plain error standard that requires the defendant to establish prejudice.

Though I have not seen the supplemental Booker briefs filed by the defendants in this case, the government's supplemental Booker brief suggests that prejudice was not a given on the facts of the case. I have a copy of the government's supplemental Booker brief (which, of course, failed to carry the day) available for download below.

Government gets 6th Circuit remand (but still may be unhappy)

In an unpublished disposition in US v. Hairston, No. 04-3038 (6th Cir. Apr. 7, 2005) (available here), the government prevailed in its sentencing appeal, but it might not be happy with the terms of the victory. It received a Booker remand, but along the way the Sixth Circuit spoke favorably about post-offense rehabilitation as grounds for a downward departure.

The government claimed in Hairston that the district court erred in granting an eight-level downward sentencing departure based on extraordinary post-offense rehabilitation. The Sixth Circuit concluded: "In light of Booker, and the fact that the district court sentenced Hairston under the now-erroneous impression that the Guidelines are mandatory, we are convinced that the proper course of action is to vacate Hairston’s sentence and remand for resentencing."

Continuing on, however, the court decided to addresss the departure issue "because the district court will need to consider the correct Guidelines-recommended sentence in fashioning its own post-Booker sentence on remand." And in so doing, the Sixth Circuit states (citations ommitted):

We think that the district court was correct to consider Hairston’s successful efforts to overcome his drug problems and transform his life sufficiently extraordinary to justify a reduction in his sentence for post-offense rehabilitation.

Our view of Hairston's case comports with the result reached under the Sentencing Guidelines by a number of courts, which have considered a variety of factors in determining whether a defendant's efforts at rehabilitation justify a downward departure. While we note that no list of factors can exhaust all relevant considerations in evaluating efforts at post-offense rehabilitation, courts in this context have considered: drug and alcohol rehabilitation; church and community involvement; steady employment, psychiatric treatment/counseling, and support of dependents; and compliance with conditions of pre-trial release.

Interestingly, the Sixth Circuit ended this opinion with a suggestion that the district court better justify the extent of its departure: "While we are convinced that the district court did not err in departing downward under the Guidelines, we instruct the district court on remand to provide a more detailed rationale for the extent of its reduction in Hairston’s sentence so that this Court can properly review for reasonableness on any subsequent appeal."

Interesting 7th Circuit remand where Blakely error preserved

The Seventh Circuit in Paladino has provided for "limited remands" in plain error cases, but today in United States v. Schlifer, No. 04-3398 (7th Cir. Apr. 7, 2005) (available here), the court took another approach in a pre-Booker case in which the defendant had preserved a Blakely challenge. And, along the way, Schlifer covers a range of post-Booker issues.

In Schlifer, the court first rejected an argument that the judge had no authority to decide whether the defendant was a career offender based on a finding that prior offenses were "related." Relying on the prior conviction exception, the Seventh Circuit states there is "no precendent for parsing out the recidivism inquiry." But thereafter the Schlifer court rules that he defendant was still entitled to a new sentencing hearing on Booker grounds. With the Blakely error preserved, the Court rejected the notion that the remedy was a limited remand under Paladino. It also rejected the government's argument that any error was harmless because the sentencing judge had downward departed based on substantial assistance:

This argument has some facial appeal, but it ignores the fact that a sentencing judge, prior to Booker, had the guidelines and the appellate standard of review in mind when fashioning a departure. A departure decision, even if "discretionary," was nevertheless informed by the guidelines and thus sheds little light on what a sentencing judge would have done knowing that the guidelines were advisory.

Interestingly, in rejecting the harmless error argument, the court suggested that, though the district court had denied a downward departure on the ground that the defendant was manufacturing drugs primarily for his own use, "the court might have granted the very same motion had it known that Booker effectively allows greater latitude in making departure decisions." This language might be read to suggest that the Seventh Circuit thinks that Booker gives district courts more authority to grant "departures" even if the "heartland" standard for a departure is not satisfied, although the Court's may have just used an inexact phrase for noting that judges now have authority to "vary" as well as to "depart" from the guidelines.

California Supreme Court arguments in Blakely cases

I have been wondering when the California Supreme Court would hear arguments on its Blakely cases (on which it granted review back in July 2004). Apparently, the time is now, as I have been told that a live webcast of these arguments is playing right now at this link. For background and the briefs in these California Blakely cases, check out this webpage from the First District Appellate Project.

Fascinating state Blakely rulings

With so much Booker action in the circuits (examples here and here), it is dangerously easy to forget about all the interesting state Blakely stories. Fortunately, readers help me discover notable state Blakely developments, and this week I have seen these quite interesting Blakely rulings from state intermediate appellate courts:

From Minnesota, a thoughtful decision in State v. Thompson, No. A04-1401 (Minn. App. Apr 05, 2005) (available here), holds that "in order to constitute a valid waiver of the Sixth Amendment right to a jury trial [under Blakely], a defendant must explicitly acknowledge and waive, either in writing or orally on the record, her right to testify, to have prosecution witnesses testify in open court in her presence, to question the prosecution witnesses, and to require any favorable witnesses to testify in her defense."

From Washington, a thoughtful decision in State v. Griffin, 2005 WL 746052 (Wash. App. Div. 1, Apr. 04, 2005), rejects a Blakely objection to judicial fact-finding to support revoking the defendant's driver's license for one year; the court concluded that the revocation was not a form of "punishment" to which Blakely applied.

Reviewing the big Booker day in the circuits

Wednesdays seem to be a big day for Booker action in the circuit courts, and today was no exception. I earlier reported at some length about some of the day's circuit action, and now I review and supplement the highlights:

First Circuit: Though not appearing in any published opinion (at least not yet), papers are reporting that the court remanded for resentencing under Booker the sentence of former Providence Mayor Vincent "Buddy" Cianci.

Second Circuit: The court inDoe declared a sentence unreasonable under Booker (discussed here).

Fifth Circuit: The court inGutierrez-Ramirez affirmed a sentence over objections to enhancements based on criminal history (discussed here). The court in two other cases also relied on its tough plain error approach to affirm guideline sentences over Booker objections.

Sixth Circuit: The court inWebb expounded at length about reasonableness under Booker in the course of affirming a sentence (discussed here).

Seventh Circuit: The court in US v. Tedder, No. 03-3345 (7th Cir. Apr. 6, 2005) (available here) reversed based on a guideline calculation error but threw in a bit of Booker dicta at the end of the opinion.

Eighth Circuit: The court inThompson relied on an identical alternative sentence to affirm a guideline sentence and also found that sentence reasonable (discussed here).

Eleventh Circuit: The court in Orundo-Mireles affirmed a sentence over objections to enhancements based on criminal history (discussed here).